Mitchell v. State

• Decision Date: 10 November 1925
• Docket Number: 16667.
• Parties: MITCHELL v. STATE.
• Court: Georgia Court of Appeals

130 S.E. 355

34 Ga.App. 505

MITCHELL v. STATE.

No. 16667.

Court of Appeals of Georgia, First Division

November 10, 1925

Syllabus by the Court.

In a burglary case where the jury returned the verdict, "We the jury, find the defendant guilty, and recommend him to the mercy of the court," under the Indeterminate Sentence Law the verdict was not in proper form, and it was error for the judge to receive it and fix the minimum and maximum term of punishment. He should have sent the jury back to their room with instructions that they fix the minimum and the maximum penalty.

Error from Superior Court, Douglas County; F. A. Irwin, Judge.

Tom Mitchell was convicted of burglary, and he brings error. Reversed.

D. S Strickland, of Douglasville, for plaintiff in error.

E. S Griffith, Sol. Gen., of Buchanan, for the State.

BLOODWORTH J. (after stating the facts as above).

The Indeterminate Sentence Law (Ga. L. 1919, p. 387; Park's Code Supp. 1922, vol. 11, § 1081e) provides that--

"The jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term."

This provision of the law is emphasized by the further provision that--

"In cases of pleas of guilty then the judge shall have the right to prescribe such minimum and maximum term as he may see fit."

The identical question before us has never been passed upon by either of the appellate courts of Georgia. The nearest approach to it is the case of Sirmans v. State, 28 Ga.App. 122, 110 S.E. 622. In that case the crime charged was the same as in this case, and the jury returned the following verdict "We, the jury, find the defendant guilty, * * * and recommend that he be punished as for a misdemeanor."

Thereupon the court told the jury:

"Your verdict is not in proper form. It will be necessary for you to return to your jury room and fix the minimum and maximum penalty."

The jury complied with these instructions, and this court held that the instructions of the trial judge were proper. This amounted to a holding that it was necessary for the jury to fix a minimum and maximum sentence, and the principle there settled is controlling in this case. We are supported in the conclusion which we have reached by the following cases from other states: In the case of Nemo v. Commonwealth, 2 Grat. (Va.) 558, the jury rendered an improper verdict as to punishment, and the court erroneously entered judgment thereon. In that case the appellate court said:

"The verdict itself was manifestly illegal; the jury having ascertained a term of imprisonment shorter than that prescribed by law. But in rendering a judgment for a different and longer term, the court departed from the settled practice in criminal prosecutions, and assumed the peculiar province of the jury. * * * The proper course would have been to have sent the jury back with proper instructions, to reconsider their verdict. * * * It would be dangerous in criminal cases to authorize that to be done in one mode which the law requires to be done in another. * * * The course of proceeding pointed out by the statute may be more or less convenient; but it is the only legal mode; and we have no power to carve out another."

"In criminal cases the jury must assess the punishment of the defendant, if found guilty, and the judgment of the court must follow the verdict. If the punishment assessed by the jury is not in conformity with the provisions of the statute, the court should see that the jury correct their verdict; but the court is not authorized to render judgment for any other or different punishment than that assessed by the jury." Clark v. State, 77 Ind. 399.

In Harwell v. State, 19...